Access to Information Orders
Decision Information
NATURE OF THE APPEAL: This appeal concerns a decision of the Ministry of the Solicitor General (now the Ministry of Public Safety and Security) (the Ministry) made pursuant to the provisions of the Freedom of Information and Protection of Privacy Act (the Act ). The requester (now the appellant) sought access to: The final report from [a named inspector] in respect to my letter of July 16, 1999 request to investigate the loss of transcripts at the Divisional Court Hamilton. To this date I have received no acknowledgement whatsoever that he even received my letters of July 21 and July 16, 1999. In respect to a letter received from [a named chief superintendent commander] Apr 2/2001 in response to a request for investigation by [a named previous regional councilor] dated Nov 14/2000, which was directed to [a named commissioner], I request copies of [a named inspector's] final report to the matter that received his full consideration in respect to the investigations requested. In respect to my letter of Aug. 2/2000 directed to [a named OPP detective], and in particular my request in the last paragraph of the letter, please provide a copy of any and all police reports regarding this request, as well as a copy of any search warrants issued and enforced in order to confirm our police protection, and the level of safety provided to this family. The Ministry issued a decision letter in which it denied access to the responsive records, stating that the records concern a matter that is currently before the courts. In its decision, the Ministry stated that it was denying access in accordance with section 49(a) read in conjunction with sections 14(1)(a), 14(1)(b), 14(1)(f), 14(1)(l), 14(2)(a) and 19, and section 49(b) read in conjunction with sections 21(2)(f) and 21(3)(b) of the Act . The appellant appealed the Ministry's decision to this office. During the course of the mediation stage of this appeal, the Ministry issued a revised decision letter in which it granted partial access to the responsive records. The Ministry stated that access to a named individual's personal information is denied pursuant to section 49(a) read in conjunction with sections 14(1)(l) and 14(2)(a) and section 49(b) read in conjunction with sections 21(2)(f) and 21(3)(b) of the Act . The Ministry also indicated that some third party information was removed from the records as it was deemed to be not responsive to the request. The appellant appealed the Ministry's revised decision on the basis that the records disclosed by the Ministry were not responsive to parts 2 and 3 of the appellant's request. The appellant clarified that as a result of the Ministry's revised decision and the disclosure of records, he was satisfied with the response to part 1 of his request. The appellant also informed the mediator that he was not pursuing access to the severed portions of the partially disclosed records. The mediator conveyed this information to the Ministry. The Ministry then contacted the appellant to clarify issues relating to parts 2 and 3 of his request. As a result of these discussions, the Ministry agreed to provide some additional information to the appellant and issued another revised decision letter granting additional access to the responsive records. In its decision, the Ministry advised that it continued to rely on section 49(a) read in conjunction with sections 14(1)(l) and 14(2)(a) and section 49(b) read in conjunction with section 21(2)(f) and 21(3)(b) of the Act in withholding part of the responsive information. The Ministry also advised that some information was removed from the records as it was deemed to be not responsive to the request. Following receipt of this revised decision letter, the appellant advised the mediator that the additional disclosure of information satisfied part 2 of his request. However, the appellant maintains the view that the Ministry has not responded to part 3 of his request and that additional records should exist in respect of part 3 of his request. I issued a Notice of Inquiry putting both the appellant and Ministry on notice of my intention to conduct an oral inquiry where the sole issue to be decided is whether the Ministry has conducted a reasonable search for records responsive to the appellant's request as required by section 24 of the Act . At the request of the Ministry, the inquiry was adjourned to enable the parties to engage in further settlement discussions, with the assistance of an Adjudication Review Officer, regarding the reasonable search issue. These efforts proved unsuccessful and a date was fixed for an oral inquiry. On Wednesday, December 4, 2002 I conducted an oral inquiry, via teleconference. The appellant was self-represented at the inquiry and made representations in support of his position. The Ministry was represented by legal counsel and was accompanied by two information analysts from the Ministry's Freedom of Information Office, one detective of the Ontario Provincial Police (OPP) and one civilian employee of the OPP. One of the information analysts and the OPP detective made representations regarding the scope of the appellant's request and the civilian OPP employee provided representations regarding the actual searches undertaken for records responsive to the appellant's request. DISCUSSION: INTRODUCTION As set out above, in appeals involving a denial of access on the basis that no or no additional records exist, the sole issue to be determined is whether the institution has conducted a reasonable search for responsive records, as required by section 24 of the Act . A number of previous orders have identified the requirements in reasonable search appeals (see, for example, Orders M-282, P-458, P-535, M-909, PO-1744 and PO-1920). In Order PO-1744, acting-Adjudicator Mumtaz Jiwan made the following statements with respect to the requirements of reasonable search appeals: … the Act does not require the Ministry to prove with absolute certainty that records do not exist. The Ministry must, however, provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. A reasonable search is one in which an experienced employee expends a reasonable effort to locate records which are reasonably related to the request (Order M-909). I agree with acting-Adjudicator Jiwan's statements. Where a requester provides sufficient detail about the records that he/she is seeking and the institution indicates that records or further records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify any records that are responsive to the request. The Act does not require the institution to prove with absolute certainty that records or further records do not exist. However, in my view, in order to properly discharge its obligations under the Act , the institution must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request. Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution's response, the appellant must, nevertheless, provide a reasonable basis for concluding that such records exist. If, after hearing all of the evidence and arguments of the parties, I am satisfied that the searches
Decision Content
NATURE OF THE APPEAL:
This appeal concerns a decision of the Ministry of the Solicitor General (now the Ministry of Public Safety and Security) (the Ministry) made pursuant to the provisions of the Freedom of Information and Protection of Privacy Act (the Act). The requester (now the appellant) sought access to:
1. The final report from [a named inspector] in respect to my letter of July 16, 1999 request to investigate the loss of transcripts at the Divisional Court Hamilton. To this date I have received no acknowledgement whatsoever that he even received my letters of July 21 and July 16, 1999.
2. In respect to a letter received from [a named chief superintendent commander] Apr 2/2001 in response to a request for investigation by [a named previous regional councilor] dated Nov 14/2000, which was directed to [a named commissioner], I request copies of [a named inspector’s] final report to the matter that received his full consideration in respect to the investigations requested.
3. In respect to my letter of Aug. 2/2000 directed to [a named OPP detective], and in particular my request in the last paragraph of the letter, please provide a copy of any and all police reports regarding this request, as well as a copy of any search warrants issued and enforced in order to confirm our police protection, and the level of safety provided to this family.